David Coppedge Trial: Week Five Surprise

The press continues to ignore the suit filed by David Coppedge, the creationist who claims he was wrongfully demoted (and later fired) by his employer because he was promoting Intelligent Design (ID) on the job. As you recall, he used to work as a computer technician for Jet Propulsion Laboratory (JPL), which is part of Caltech. He also maintains a creationist website: Creation-Evolution Headlines — which was recently moved here.

Despite media disinterest, we have another source of information about what’s going on. There’s been a new batch of pleadings related to the motions in limine the parties filed in order to determine what evidence the judge will allow in or exclude from the trial. These pleadings were obtained from the court clerk’s office by our friends at the National Center for Science Education (NCSE), and then posted at their archive of pleadings in the case: NCSE’s Coppedge archive. They’re scans of pdf files.

The last time we discussed such motions was just before the trial started, in our Pre-Trial Perspective. We never saw any written orders on those motions, but it appears that most were decided in JPL-Caltech’s favor.

Before we get to the latest matters that were filed in the past few days — which are very interesting — we want to mention some pleadings and orders from a few weeks ago that just showed up. The first is the court’s order on media coverage. That was signed on 12 March and it looks routine, but with a hand-written proviso regarding Proposition 8. It’s largely irrelevant now that the trial has gone through four weeks with the media showing virtually no interest.

The next item, responding to the judge’s order, is JPL’s motion to limit media coverage. JPL-Caltech argued that the judge’s order (with a limited restriction of media coverage) was fine as to Proposition 8, but they also wanted the ban extended to other personal matters such as religious beliefs and practices, because they didn’t want their personnel exposed to that kind of publicity.

As you might have expected, Coppedge opposed JPL-Caltech’s motion to limit publicity, arguing that the public has the right to know the full scope of all the facts of the trial. Here’s one excerpt:

Hostility to Coppedge’s “religion,” in Chin’s words, presented no “privacy” problem for JPL when managers were lecturing and demoting him on April 13, 2009. But now, long after all depositions have been taken, JPL is suddenly concerned with employees’ “privacy” in their religious or other views.

JPL’s motion does not suggest JPL will refrain from questioning Coppedge about his religious views or ideas about intelligent design. JPL apparently lacks concern for Coppedge’s privacy; JPL’s concern focuses on protecting the “privacy” of employees whose conflicting religious views actually led to this lawsuit in the first place.

We don’t need to comment on that, because you can figure out for yourselves which side of this case made an issue of religion and intelligent design and wants the trial to be all about those things, rather than Coppedge’s performance on the job.

If you want to dig into that more deeply, here’s JPL’s brief on the relevance of the witnesses’ religious background. They say some of their employees didn’t know or care about Coppedge’s religion, and they should be left in peace. Others, particularly the decision makers, may have known about Coppedge’s views, but what they might be properly asked about their own views, if anything, should be determined by the state of the evidence at the time such questions are asked. We don’t know how the judge ruled on that.

There are a couple of other pleadings regarding earlier issues. One is JPL’s argument in favor of allowing Gregory Chin, Coppedge’s supervisor, to be JPL’s representative in the trial. What’s interesting about this issue is that ordinary witnesses can be kept out of the trial except when they’re on the stand giving testimony. Obviously, the Coppedge team wanted Chin, like all other witnesses, to be kept in the dark so his testimony wouldn’t be affected by what others had said. But a party to the case has the right to be there all the time. If Chin is representing JPL, then he can sit there in court while all other witnesses are testifying and observe what’s being said, notwithstanding that he himself will also be a witness. JPL argued that “Chin’s role as a witness is no impediment to his service as Caltech’s representative.” Neat stuff. We’re not sure how the judge handled it.

There’s one other pleading from a month ago. That’s JPL’s supplemental brief in support of its motion to exclude mention of JPL’s research into the origin of life. You recall our earlier discussion of that. Coppedge wanted to argue that his creationist DVDs and such were relevant to JPL’s mission, so he was just trying to be helpful. JPL says:

As Caltech explained in prior briefing and shows here again, Coppedge cannot attempt to justify his behavior as work-related, when it had nothing whatsoever to do with the job for which he was paid.


As the Court properly found, Coppedge has not shown that his job had anything to do with intelligent design. Coppedge was a Systems Administrator (“SA”), meaning his work involved servicing computers and computer networks. He was not a scientist, and he was not paid to study or discuss the origins of life. Even if he had been a scientist (he was not), and even if his work encompassed origins research (it did not). that still would not justify discussions regarding intelligent design. To be work-related, the conduct would have had to pertain to origins research that JPL and/or NASA were actually doing. Their origins research does not encompass intelligent design.

We assume that JPL-Caltech prevailed on that one, because if Coppedge had been allowed to expound on intelligent design, we suspect that we would heard about it.

Now we come to the latest motions that were filed in the last few days. The first is Coppedge’s motion to exclude cumulative witnesses. This was filed at the start of last week. It says that JPL-Caltech has twelve witnesses it wants to testify about Coppedge’s job performance and their interactions with him. Coppedge’s motion says:

The testimony of these witnesses will be unnecessarily cumulative and will result in an undue consumption of the Court’s time. Moreover, JPL’s attempt to “pile on” is extremely prejudicial and lacks any probative value. The only relevant evidence is the testimony of the decision-makers and the basis of their decisions. The fact that the decision-makers did not document the material information justifying their decisions does not give them carte blanche to parade voluminous witnesses into court to verify what the decision-makers will testify was the basis of their decisions.

We can understand why Coppedge doesn’t want such testimony. We have no idea how such an issue will be resolved. Perhaps after one or two of them do testify, the parties can stipulate that JPL-Caltech has ten more who will say pretty much the same thing. That should be sufficient to make the point.

The next new pleading is important. It’s Coppedge’s motion in limine (#7) to exclude and strike employee performance ranking records, or alternatively for a new trial. It says:

This motion is made on the grounds that Plaintiff [don’t they mean “Defendant”?] presented surprise testimony incidental to documentation that was never disclosed in discovery in this action and is thus entitled to a new trial pursuant to [citation omitted].


On April 2, 2012, Kevin Klenk testified about a “forced ranking system” for compensation purposes. … Klenk testified that between 2007 and 2009, Plaintiff [Coppedge] ranked in the lower half of all section employees.

On cross examination, Klenk testified that the ranking of employees was recorded in written form produced annually. These documents were never produced in response to discovery requests, even though they would have been evidence of a legitimate, non-discriminatory, non-retaliatory, non-pretextual reason for adverse employment actions taken against Plaintiff.

The rest of the pleading details how the Coppedge team was improperly taken by surprise and had no opportunity to prepare for such evidence. They want it stricken or they want a new trial. This is potentially big. It’s interesting that the Discoveroids haven’t yet said anything about this. The Coppedge team has also filed a supplementary pleading in support of that motion. It’s 39 pages long and we haven’t looked at it.

So there you are. This is the fifth week of the trial, and things are definitely heading up. Stay tuned to this blog.

Copyright © 2012. The Sensuous Curmudgeon. All rights reserved.

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16 responses to “David Coppedge Trial: Week Five Surprise

  1. These documents were never produced in response to discovery requests, even though they would have been evidence of a legitimate, non-discriminatory, non-retaliatory, non-pretextual reason for adverse employment actions taken against Plaintiff.

    This does not sound like a winning strategy, it sounds like a giveupski. Sounds like Coppedge’s lawyer is saying “if you had told me about this, I would’ve never brought the suit to trial. So my client and I accept that Coppedge has no case, but you owe us my attorney fees.”

  2. Things are looking worse than ever for Team Coppedge.

    I wonder how much Coppedge and the DI stand to lose in monetary terms. I hope it is enough to hurt a lot.

  3. Jack Hogan says: “Things are looking worse than ever for Team Coppedge.”

    That depends. If those performance reports should have been disclosed during discovery, then JPL has a problem now. They may not be able to use that evidence now, and Coppedge may even get a new trial. We need to see JPL’s response to this thing. I doubt that it’s as clear-cut as Coppedge’s motion makes it seem, but we don’t know at the moment.

  4. To my knowledge, JPL never asserted that Coppedge’s place in a forced ranking for compensation purposes led to either losing his lead position or being laid off. It was not even closely related to either. That’s not the nature of compensation rankings.

    During my tenure at a large aerospace company, we did annual employee rankings to aide in determining merit increases, but those rankings were not reflected in performance reviews or other actions. For example, one could have a group of employees who were all excellent – however in a forced ranking half of those excellent employees would be below the midpoint, in the third or fourth quartile. It’s not a statement about a person’s objective abilities, it’s only a reflection of where they stand compared to others in their group. Also, in a large group ranking exercise, involving several managers who represent their employees, a manager’s ability to present their people positively and persuade other managers to their views has a great influence on the outcome for their employees.

    I think JPL can make a decent argument that the ranking document is irrelevant, and is not part of their defense. What is important is that the witness came to know something about Coppedge during those discussions. Perhaps the judge will make a narrow exclusion related to the actual ranking itself.

  5. SC, my guess/assumption is if Team Coppedge is asking for a retrial on this basis they have a serious problem and are looking for a way out.

    Either way, it doesn’t look good for them.

    If the judge gives them a retrial I assume they can subsequently decline to proceed with a new trial and drop the lawsuit, saving themselves from a judgment against them.

    Would Coppedge really want to start all over and spend another week on the stand if his attorneys have concluded it is likely he will lose? If he does he might have to find some new attorneys.

  6. Charley Horse

    “you can’t unring a bell”…..the judge, the way I see it,
    can go either way on whether to call a mistrial or not.

    To me, that is a potent piece of evidence….though not
    in Coppedge’s favor, was withheld and should not of been.

  7. This motion in limine #7 doesn’t pass the smell test. Becker is implying gross negligence by JPL legal counsel. Given plaintiff’s, ahem, extravagence of thought, IMO we should wait for the other shoe to drop.

  8. rubble says: “This motion in limine #7 doesn’t pass the smell test.”

    I donno. Those reports aren’t on the exhibit list. It’s possible that JPL was saving that stuff for rebuttal. I’m not sure how that works. Coppedge’s motion does say that Klenk mentioned the reports during cross-examination. Maybe that’s allowed. If not, it could be a big goof-up, but that’s hard to believe.

  9. In the big, bad oil company forced ranking would be done by group which might contain 5,000 people. It was totally irrelevant to your performance review in the sense that it happened AFTER your performance review.

    Thus, each section supervisor would review the troops and divide them into three groups: A, B and C. Sections would fold into a branch, branches into divisions and divisions into the group. At each folding there would be a little haggling but only people on the borderline. So, you had a list of 10% A’s, 80% B’s and 10% C’s and only the people along the AB-BC boundaries were discussed and moved around a bit.

    That’s because compensation was based, in part, on which group you were in, not your actual forced ranking number.

    Remember, everybody was ranked in order, from the tall to the small, as our manager so eloquently put it: scientists, secretaries, programmers and lab technicians all rolled into one big list.

    No, it doesn’t make a lot of sense, but that’s the way it was.

    So, in summary, your performance review determined your rating, not the forced ranking. If you were an A in your section you were probably going to be an A in the group. A good manager might be able to move a few people up, but at the cost of some other manager’s people moving down.

    Outside of compensation allocations a forced ranking document would have no relevance, certainly none to performance. It’s a reflection of performance, not a metric of performance.

  10. It’s interesting that Becker wants to exclude JPL witnesses he claims are irrelevant to the decisions to “demote” and layoff old Coppers, yet Becker wants a new trial because he didn’t discover the irrelevant forced ranking document that played no part in either the “demotion” nor layoff.

    Basically, he’s trying to throw as much chaff in the air as possible.


  12. Not sure why, but the page at http://www.evolutionnews.org/2012/03/in_the_david_co057491.html has just been updated today. I don’t see the change but I assume they are trying to re-write history.


  14. Rubble says: “An additional document was filed late yesterday”

    Where are you getting this information? It’s not shown at the clerk’s website, and NCSE doesn’t have those items.

  15. SC, I have an account with the court, which permits me to see what’s filed, for free. For a fee, I can DL the scanned document.

  16. Isn’t it usually the defendant who asks for a mistrial because the plaintiff or prosecution did not disclose all of their evidence or engaged in some procedural no-no?

    Here we have a plaintiff requesting a mistrial because the defendant, JPL, has introduced evidence that supports their innocence. Isn’t the plaintiff supposed to know they have a good case against the defendant well before five weeks into the trial? Shouldn’t they know they have a good case when they file the initial charges?

    Imagine some clown is suing you for big bucks and you introduce evidence that helps demonstrate your innocence, and the clown asks for a mistrial because you did not dot all the i’s and cross all the t’s before introducing evidence that supports that you, the defendant, are innocent of the charges.